Filed: Jun. 19, 2002
Latest Update: Mar. 03, 2020
Summary: recommendation and the record of trial to, the convening authority for action under, RCM 1107, the staff judge advocate or legal, officer shall cause a copy of the, recommendation to be served on counsel for, the accused.detailed defense counsel.judges post-sentence comments.of harmless error.
UNITED STATES, Appellee
v.
Sean M. WILLIAMS, Mess Management Specialist Seaman Recruit
U.S. Navy, Appellant
No. 01-0675
Crim. App. No. 200000895
United States Court of Appeals for the Armed Forces
Argued February 6, 2002
Decided June 19, 2002
BAKER, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., joined. CRAWFORD, C.J., and SULLIVAN, S.J.,
each filed a dissenting opinion.
Counsel
For Appellant: Lieutenant Marcus N. Fulton, JAGC, USNR
(argued); Captain Donald L. Nelson, JAGC, USNR (on brief);
Lieutenant Amanda St. Claire, JAGC, USNR.
For Appellee: Lieutenant Jason A. Lien, JAGC, USNR (argued);
Colonel Rose M. Favors, USMC (on brief).
Military Judge: David M. White
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Williams, No. 01-0675/NA
Judge BAKER delivered the opinion of the court.
On November 16, 1999, appellant pled guilty without the
benefit of a pretrial agreement to unauthorized absence,
larceny, and forgery, in violation of Articles 86, 121, and 123,
Uniform Code of Military Justice, 10 USC §§ 886, 921, and 923,
respectively. A military judge sitting as a special court-
martial found appellant guilty in accordance with these pleas
and adjudged a bad-conduct discharge, confinement for 100 days,
and a fine of $1,500. The convening authority approved the
sentence as adjudged, and the Court of Criminal Appeals affirmed
in an unpublished opinion. No. 200000895 (N-M. Ct. Crim. App.
May 7, 2001). The granted issue requires our review of the
post-trial handling of a military servicemember’s case.1 Here,
we find error and remand.
BACKGROUND
After announcing the sentence during appellant’s court-
martial, the military judge made the following comments on the
record:
I would ask the trial counsel to pass
to the convening authority the nature and
content of the accused’s stated desire to
have another chance and that he’s learned
his lessons and that the convening authority
and the chain of command that knows Seaman
1
Granted Issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FAILING TO
REMAND THIS CASE TO THE CONVENING AUTHORITY FOR A NEW COMMAND
JUDGE ADVOCATE’S RECOMMENDATION AND CONVENING AUTHORITY’S
ACTION CONSISTENT WITH THE ASSIGNMENT OF ERROR RAISED BELOW.
2
United States v. Williams, No. 01-0675/NA
Recruit Williams take into consideration
whether they want to defer or suspend any
portion of this sentence in order to allow
him to have a suspended bad-conduct
discharge and demonstrate that his stated
desire to continue his enlistment is
something that he can pull off.
I say that in light of the nice
testimonials from two pastors and from his
mother concerning his intended desire to do
well in the Navy, as well as his youth, and
realizing that hopefully, if he has learned
from this experience and the brig can
perform its rehabilitative function, that
Seaman Recruit Williams may have an
opportunity to fulfill that enlistment.
On January 19, 2000, trial defense counsel submitted
matters to the convening authority on behalf of appellant
pursuant to RCM 1105, Manual for Courts-Martial, United States
(2000 ed.).2 The submission expressly requested, inter alia,
that the convening authority suspend the bad-conduct discharge.
However, it did not reference the military judge’s comments made
on the record. The command judge advocate’s recommendation
(CJAR), dated April 19, 2000, includes the first paragraph of
the military judge’s comments quoted above, but not the second
paragraph. Trial defense counsel acknowledged receipt of the
recommendation on May 24, 2000; however, the convening authority
issued his action the previous day, May 23, 2000.
RCM 1106(f) requires the following:
(1) Service of recommendation on defense
counsel and accused. Before forwarding the
2
All Manual provisions cited are identical to those in effect at the time of
trial.
3
United States v. Williams, No. 01-0675/NA
recommendation and the record of trial to
the convening authority for action under
RCM 1107, the staff judge advocate or legal
officer shall cause a copy of the
recommendation to be served on counsel for
the accused.
The court below found failure to serve defense counsel
prior to the convening authority’s action in this case to be
harmless error since the commander’s action stated that he had
considered the CJAR, the accused’s RCM 1105 submissions, and the
record of trial. On January 15, 2002, this Court granted
appellant’s motion to attach trial defense counsel’s sworn
declaration that the recommendation was not served on him until
after the convening authority had taken action in the case. He
also stated:
. . . I would have commented on the command judge
advocate’s selective excerpting of the military
judge’s clemency recommendation. I would have
provided the omitted portion of the clemency
recommendation to the convening authority with a
request that he thoroughly consider the recommendation
of the military judge in its entirety and that he
accordingly suspend MSSR Williams’ bad-conduct
discharge.
DISCUSSION
The Government’s contention is that appellant has failed to
make a colorable showing of prejudice under United States v.
Chatman, 46 M.J. 321 (1997). We have consistently held that
“service of the SJA’s recommendation on the accused’s counsel is
a critical part of the accused’s post-trial representation.”
United States v. Mark,
47 M.J. 99, 101 (1997)(citing United States
4
United States v. Williams, No. 01-0675/NA
v. Moseley 35 M.J. 481, 484-85 (CMA 1992)). Further, we agree
with Judge Gierke’s view espoused in Moseley that
[t]he service requirement in Article 60(d), Uniform
Code of Military Justice, 10 USC § 860(d) (1986), and
RCM 1106(f), Manual for Courts-Martial, United States,
1984, was intended to incorporate the procedures
mandated by this Court in United States v. Goode, 1 M.J.
3 (CMA 1975). S.Rep. No. 53, 98th Cong., 1st Sess.
20-21 (1983); Drafters' Analysis, Manual, supra at
A21-73. The purpose of the service requirement
imposed in Goode was ‘to eliminate delays encountered
in claims of error in post-trial reviews and the
exhaustion of appellate resources when such error
could easily and expeditiously be resolved prior to
the convening and supervisory authorities' actions.’
United States v. Hill, 3 M.J. 295, 296 (CMA 1977).
Moseley, supra at 486 (concurring in part and dissenting in
part).
In Chatman, we addressed the question of the standard to be
applied when a staff judge advocate fails to serve on the
defense a copy of an addendum that contains “new matter” to
which an accused has the right to respond. See RCM 1106(f)(7).
We required an appellant to “demonstrate prejudice by stating
what, if anything, would have been submitted to deny, counter,
or explain the new matter.” 46 M.J. at 323 (internal quotations
omitted). We further indicated that “the threshold should be
low, and if an appellant makes some colorable showing of
possible prejudice, we will give that appellant the benefit of
the doubt and we will not speculate on what the convening
authority might have done if defense counsel had been given an
opportunity to comment.”
Id. at 323-24 (internal quotations
5
United States v. Williams, No. 01-0675/NA
omitted)(emphasis added). In United States v. Howard, 47 M.J.
104, 107 (1997), we extended this standard to cases involving
failure to serve the original recommendation on defense counsel.
We accept without more trial defense counsel’s statement in
his declaration that he would have commented on the command
judge advocate’s failure to include the second part of the
military judge’s comments.3 We disagree with the Government that
the omitted part of the military judge’s comments was simply a
repeat of the first part. In the second part of his comments,
the military judge stated the basis for his personal view that
appellant was worthy of the type of clemency he was
recommending. These comments indicated that the "nice
testimonials from two pastors and from his mother concerning his
intended desire to do well in the Navy," considered by the
military judge during sentencing, had moved him to make this
particular clemency recommendation. More importantly, the
second part of the military judge’s comments included his
favorable assessment of appellant’s rehabilitative potential.
Given the numerous offenses with which appellant was originally
3
Neither the record nor defense counsel’s declaration mentions when counsel
became aware of the fact that the convening authority had already issued his
action by the time the CJAR was received. We remind counsel that RCM
1107(f)(2) allows the convening authority to recall and modify any action
prior to forwarding the record for review.
6
United States v. Williams, No. 01-0675/NA
charged,4 the convening authority might logically have given the
on-the-record remarks little weight in the absence of the
military judge’s stated reasons for making them.
“The essence of post-trial practice is basic fair play—
notice and an opportunity to respond.” United States v. Leal,
44 M.J. 235, 237 (1996). It certainly would have been within the
convening authority’s discretion to decline the military judge’s
recommendation, even had counsel been provided the opportunity
to comment. However, appellant had the right to have his
counsel served the recommendation in accordance with RCM
1106(f). In this case, he also had the attendant right to
respond to the command judge advocate’s failure to include the
military judge’s favorable recommendation in its entirety. We
hold that appellant was denied these rights when his counsel was
not served the recommendation prior to the convening authority’s
action, and that he has made a “colorable showing” of prejudice.5
4
In addition to the offenses to which appellant entered pleas of guilty, he
was also charged with five specifications of failure to go, one specification
of disrespect to a chief warrant officer, one specification of disrespect to
petty officers, one specification of disobeying a commissioned officer, one
specification of disobeying a petty officer, two specifications of making
false officials statements, and one specification of communicating a threat.
These offenses were withdrawn without prejudice by the government just before
the military judge entered findings of guilty in accordance with appellant’s
pleas. They were ultimately dismissed by the Government at trial.
5
We have become increasingly concerned with what we view as a lack of
attention to the post-trial process. For instance, the convening authority’s
action in this case purports to implement appellant’s automatic reduction to
E-1 under Article 58a, UCMJ, 10 USC § 858a. This is curious since appellant
was already at grade E-1 at the time of trial.
7
United States v. Williams, No. 01-0675/NA
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals and the action of the convening authority
are set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to a convening authority
for a new post-trial recommendation and action. Thereafter,
Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867, respectively,
will apply.
8
United States v. Williams, No. 01-0675/NA
CRAWFORD, Chief Judge (dissenting):
While there must be accountability in eliminating errors as
to the command judge advocate’s (CJA) recommendation, appellant
is required to show a colorable claim of prejudice. United
States v. Chatman, 46 M.J. 321, 323-24 (1997); see also United
States v. Wheelus,
49 M.J. 283, 286-87 (1998). That has not been
done. Nor is there any chance that appellant will be retained
in the service as a result of a new CJA recommendation and
action by the convening authority. One only needs to ask
whether the Navy wants to have appellant or a new recruit off
the street in the service. The answer, based on his offenses,
is obvious.
FACTS
Appellant was an eighteen-year-old sailor with less than a
year of active service at the time of the offenses and was
assigned to the USS ABRAHAM LINCOLN at the Puget Sound Naval
Shipyard, Bremerton, Washington. Over a four-month period,
appellant was absent without leave from his unit on four
separate occasions. These absences occurred on May 6-11, June
1-4 and 7-25, and June 28-September 3, 1999. Appellant offered
no excuses for his absences other that he just did not want to
go to work. He stayed in the local area during his first three
absences and for a good portion of his last absence. His last
United States v. Williams, No. 01-0675/NA
unauthorized absence terminated when he turned himself in at the
Great Lakes base in Chicago after traveling through Texas.
On August 1, 1999, appellant stole $1,500.00 from the
Washington Mutual Bank in Everett, Washington. He did so by
depositing a forged check into his checking account using the
ATM. Over the next few days, he withdrew the funds from his
checking account. He obtained the blank check from Senitria
Larue, whose account at Washington Mutual Bank had been closed.
Appellant forged Senitria Larue’s signature on the check and
made it payable to himself in the amount of $1,500.00.
Appellant was convicted based on his pleas of guilty.
After announcing the sentence, the military judge made the
following comment:
I would ask the trial counsel to pass to the
convening authority the nature and content of the
accused’s stated desire to have another chance and
that he’s learned his lessons and that the convening
authority and the chain of command that knows Seaman
Recruit Williams take into consideration whether they
want to defer or suspend any portion of this sentence
in order to allow him to have a suspended bad-conduct
discharge and demonstrate that his stated desire to
continue his enlistment is something that he can pull
off.
I say that in light of the nice testimonials from
two pastors and from his mother concerning his
intended desire to do well in the Navy, as well as his
youth, and realizing that hopefully, if he has learned
from this experience and the brig can perform its
rehabilitative function, that Seaman Recruit Williams
may have an opportunity to fulfill that enlistment.
2
United States v. Williams, No. 01-0675/NA
On January 21, 2000, his defense counsel
submitted a request for clemency. The CJA completed
his recommendation, dated April 19, 2000, and submitted it to
the defense counsel, who did not acknowledge
receipt of the CJA recommendation until May 24, 2000. Neither
defense counsel nor appellant objected to the convening
authority taking action before acknowledgement of the receipt of
service. The convening authority took action and approved
appellant’s sentence on May 23, 2000. The action reflects that
“the record of trial, the results of trial, the defense’s
clemency request dated 21 January 2000, and the Command Judge
Advocate’s recommendation have been considered.”
The court below found that the convening authority erred by
taking action before the CJA’s recommendation was served on the
detailed defense counsel. In a footnote to its opinion, the
court below stated:
The convening authority’s action states that the
[C]JAR was submitted to the appellant’s defense
counsel on 1 May 2000. Nonetheless, we choose to
rely on the date of acknowledgment by the defense
counsel.
Unpub. op. at 2 n.1.
DISCUSSION
RCM 1106(f)(5) states: “Counsel for the accused shall be
given 10 days from service of the record of trial under RCM
1104(b) or receipt of the recommendation, whichever is later, in
3
United States v. Williams, No. 01-0675/NA
which to submit comments on the recommendation.” The court
below acknowledged that the convening authority erred by taking
action before the ten days had expired. I agree.
Nonetheless, appellant is not entitled to relief unless he
is able to demonstrate prejudice. The court below found no
prejudice because appellant’s earlier clemency submission of
January 21, 2000, was before the convening authority, and
appellant has failed to show what additional clemency matters he
would have submitted.
Thus, I cannot conclude that appellant was prejudiced by
the failure of the CJA’s recommendation to include the second
paragraph of the military judge’s clemency recommendation.
4
United States v. Williams, No .01-0675/NA
SULLIVAN, Senior Judge (dissenting):
I agree with the majority that the convening authority erred
by taking action in this case before defense counsel was served
with the command staff judge advocate’s recommendation. See
generally United States v. Johnston, 51 M.J. 227, 229 (1999).
Nevertheless, I am not convinced that appellant has made a
colorable showing of possible prejudice. United States v.
Chatman,
46 M.J. 321, 323-24 (1997); see United States v. Schrode,
50 M.J. 459 (1999).
In this regard, I note that all defense clemency materials
were submitted to and considered by the convening authority prior
to his taking action in this case. Moreover, the command staff
judge advocate in his post-trial review called the convening
authority’s attention to the military’s judge favorable comments
on the suspension of the bad-conduct discharge. Finally,
although the command staff judge advocate did not repeat verbatim
the military judge’s comments, they were in the record of trial
and, therefore, before the convening authority.
I further note that defense counsel himself in his earlier
clemency submissions in this case did not reference the military
judge’s post-sentence comments. Such inaction may suggest error
by the defense counsel at trial; however, appellant did not raise
that issue on this appeal. Moreover, the omission from
mentioning this matter in the clemency materials may reflect the
defense’s belief that the trial judge’s comments were not that
United States v. Williams, No. 01-0675/NA
helpful. In all these circumstances, I would affirm on the basis
of harmless error. See United States v. Kho, 54 M.J. 63, 65 (2000)
(no plain error in failure to note military judge’s
recommendation on sentence where clearly not prejudicial under
circumstances of case).
2
